DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Claims 5-7, 9-10, 13, 15-17, 19-26 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 3/26/2026. Therefore, the restriction is made final herein.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
The USPTO “Interim Guidelines for Examination of Patent Applications for Patent Subject Matter Eligibility” (Official Gazette notice of 22 November 2005), Annex IV, reads as follows:
Descriptive material can be characterized as either "functional descriptive material" or "nonfunctional descriptive material." In this context, "functional descriptive material" consists of data structures and computer programs which impart functionality when employed as a computer component. (The definition of "data structure" is "a physical or logical relationship among data elements, designed to support specific data manipulation functions." The New IEEE Standard Dictionary of Electrical and Electronics Terms 308 (5th ed. 1993).) "Nonfunctional descriptive material" includes but is not limited to music, literary works and a compilation or mere arrangement of data.
When functional descriptive material is recorded on some computer-readable medium it becomes structurally and functionally interrelated to the medium and will be statutory in most cases since use of technology permits the function of the descriptive material to be realized. Compare In re Lowry, 32 F.3d 1579, 1583-84, 32 USPQ2d 1031, 1035 (Fed. Cir. 1994) (claim to data structure stored on a computer readable medium that increases computer efficiency held statutory) and Warmerdam, 33 F.3d at 1360-61, 31 USPQ2d at 1759 (claim to computer having a specific data structure stored in memory held statutory product-by-process claim) with Warmerdam, 33 F.3d at 1361, 31 USPQ2d at 1760 (claim to a data structure per se held nonstatutory).
In contrast, a claimed computer-readable medium encoded with a computer program is a computer element which defines structural and functional interrelationships between the computer program and the rest of the computer which permit the computer program's functionality to be realized, and is thus statutory. See Lowry, 32 F.3d at 1583-84, 32 USPQ2d at 1035.
Claim 32 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter as follows. Claim 32 defines a “system”. However, while the preamble defines a “system”, which would typically be indicative of an “apparatus”, the body of the claim lacks definite structure indicative of a physical apparatus. Furthermore, the specification indicates that the invention may be embodied as pure software i.e. paragraphs 201 and 202 of the PGPub. Therefore, the claim as a whole appears to be nothing more than a “system” of software elements, thus defining functional descriptive material per se.
Functional descriptive material may be statutory if it resides on a “non-transitory computer-readable medium or computer-readable memory”. The claim(s) indicated above lack structure, and do not define a computer readable medium and are thus non-statutory for that reason (i.e., “When functional descriptive material is recorded on some computer-readable medium it becomes structurally and functionally interrelated to the medium and will be statutory in most cases since use of technology permits the function of the descriptive material to be realized” – Guidelines Annex IV). The scope of the presently claimed invention encompasses products that are not necessarily computer readable, and thus NOT able to impart any functionality of the recited program. The examiner suggests:
1. Amending the claim(s) to embody the program on a “non-transitory computer-readable medium” or equivalent; assuming the specification does NOT define the computer readable medium as a “signal”, “carrier wave”, or “transmission medium” which are deemed non-statutory; or
2. Adding structure to the body of the claim that would clearly define a statutory apparatus.
Any amendment to the claim should be commensurate with its corresponding disclosure.
It is noted that claims 1-3, 5-7, 9, 10, 27 and 48 are considered eligible subject matter. Even if the claims were considered an abstract idea, the claims provide limitations that provide a practical application, i.e. assessing intoxication in an individual.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 2, 32 and 48 are rejected under 35 U.S.C. 103(a) as being unpatentable over U.S. Patent Application Publication No. 20170088098 (Frank et al) in view of U.S. Patent No. 7027621 (Prokoski).
Regarding claim 1, Frank et al discloses a method (fig. 14) for assessing an operating status of an individual, the method comprising the steps of: receiving a thermographic image (Fig. 14, item 1402) comprising a face or facial features of the individual, because the images of fig. 14, item 1402 are of the interior including occupants which includes their face (page 13, paragraph 153); performing pre-processing of the thermographic image to provide a pre-processed image (fig. 14, item 1404, 1406, 1408) ;identifying a face portion comprising the face or facial features in the pre-processed image (fig. 14, item 1408, 1410, page 16, paragraph 193); and analyzing the face portion using an operating assessment method to assess the intoxication status (fig. 14, item 1414, page 16, paragraph 196, page 18, paragraph 205).
Frank et al does not disclose expressly an operating status is an intoxication status and the assessment method is for intoxication.
Prokoski discloses an operating status is an intoxication status (fig. 15, item 130 “drunkenness”) and the assessment method is for intoxication (fig. 16, “drunkenness”).
Frank et al & Prokoski are combinable because they are from the same field of endeavor, i.e. driver monitoring.
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to check a condition of drunkenness.
The suggestion/motivation for doing so would have been to provide a safer method by monitoring for illegal behaviour.
Therefore, it would have been obvious to combine the method of Frank et al with the drunkenness condition monitoring to obtain the invention as specified in claim 1.
Regarding claim 2, Frank et al discloses the thermographic image further comprises faces or facial features of other persons (fig. 14, item 1402, interior compartment images captured with multiple individuals (fig. 13A) and the step of identifying the face portion comprises isolating the face or facial features of the individual, since the faces of are al localized (page 16, paragraph 193) and features are isolated (fig. 14, item 1410, page 18, paragraph 205).
Claims 32 and 48 are rejected for the same reasons as claim 1. Thus, the arguments analogous to that presented above for claim 1 are equally applicable to claims 32 and 48. Claims 32 and 48 distinguish from claim 1 only in that they are system that omits the receiving step and non-transitory computer readable medium claims that carry out the method of claim 1. Since all the limitations are addressed above and since Frank et al teaches further this feature, i.e. a FPGA or non-volatile memory, page 4, paragraphs 58-59).
Claims 3, 5 and 6 are rejected under 35 U.S.C. 103(a) as being unpatentable over Frank et al in view of Prokoski, as applied to claim 1 above, and further in view of U.S. Patent Application Publication NO. 20220408037 (Sudo et al).
Regarding claim 3, Frank et al (as modified by Prokoski) discloses all of the claimed elements as set forth above and incorporated herein by reference.
Frank et al (as modified by Prokoski) does not disclose expressly the pre-processing comprises: reducing the thermographic image to a single channel; and/or - removing data from the thermographic image for temperatures outside of a temperature range.
Sudo et al discloses pre-processing comprises removing data from the thermographic image for temperatures outside of a temperature range by only extracting areas of the face that are in a certain temperature range (page 3, paragraphs 29, 30).
Frank et al (as modified by Prokoski) & Sudo et al are combinable because they are from the same field of endeavor, i.e. facial extraction in thermographic images.
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to use a temperature range to extract facial areas.
The suggestion/motivation for doing so would have been to provide a faster, robust system by using a quick and accurate metric for extracting facial data.
Therefore, it would have been obvious to combine the method of Frank et al (as modified by Prokoski) with the temperature range of Sudo et al to obtain the invention as specified in claim 3.
Regarding claim 5, Sudo et al discloses the temperature range is between 17 degrees Celsius and 47 degrees Celsius, because the temperature range is between 30 and 40 degrees Celsius (page 3, paragraph 30).
Regarding claim 6, Sudo et al discloses the temperature range is between 32 degrees Celsius and 42 degrees Celsius, because the temperature range is between 30 and 40 degrees Celsius (page 3, paragraph 30).
Claim 7 rejected under 35 U.S.C. 103(a) as being unpatentable over Frank et al in view of Prokoski, as applied to claim 1 above, and further in view of U.S. Patent Application Publication NO. 20090034801 (Hammoud).
Regarding claim 7, Frank et al (as modified by Prokoski) discloses all of the claimed elements as set forth above and incorporated herein by reference.
Frank et al (as modified by Prokoski) does not disclose expressly the pre-processing comprises reducing a resolution of the thermographic image.
Hammoud discloses the pre-processing comprises reducing a resolution of the thermographic image by lowering the size of the image to reduce the amount of hair (page 4, paragraph 36).
Frank et al (as modified by Prokoski) & Hammoud are combinable because they are from the same field of endeavor, i.e. thermal facial processing..
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to reduce the resolution.
The suggestion/motivation for doing so would have been to provide a more robust system by reducing noise.
Therefore, it would have been obvious to combine the method of Frank et al (as modified by Prokoski) with the reduction of resolution of Hammoud to obtain the invention as specified in claim 7.
Claim 9 is rejected under 35 U.S.C. 103(a) as being unpatentable over Frank et al in view of Prokoski, as applied to claim 1 above, and further in view of U.S. Patent Application Publication No. 20210156749 (Tewolde et al).
Regarding claim 9, Frank et al (as modified by Prokoski) discloses all of the claimed elements as set forth above and incorporated herein by reference.
Frank et al (as modified by Prokoski) does not disclose expressly the step of identifying the face portion comprises using a Haar Cascade.
Tewolde et al discloses identifying the face portion comprises using a Haar Cascade (page 3, paragraph 33).
Frank et al (as modified by Prokoski) & Tewolde et al are combinable because they are from the same field of endeavor, i.e. face detection in thermal images.
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to us a Haar cascade.
The suggestion/motivation for doing so would have been to provide a more robust, user-friendly method by using a well-known means of detecting faces.
Therefore, it would have been obvious to combine the method of Frank et al (as modified by Prokoski) with the use of Haar Cascades of Tewolde et al to obtain the invention as specified in claim 9.
Claim 10 is rejected under 35 U.S.C. 103(a) as being unpatentable over Frank et al in view of Prokoski, as applied to claim 1 above, and further in view of U.S. Patent No. 10896318 (Gernoth et al).
Regarding claim 10, Frank et al (as modified by Prokoski) discloses all of the claimed elements as set forth above and incorporated herein by reference.
Frank et al (as modified by Prokoski) does not disclose expressly the step of detecting an obstruction.
Gernoth et al discloses the step of detecting an obstruction, i.e. an occlusion area (col. 1, line 49-51).
Frank et al (as modified by Prokoski) & Gernoth et al are combinable because they are from the same field of endeavor, i.e. facial image processing.
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to have a step to detect obstructions.
The suggestion/motivation for doing so would have been to provide a more accurate system by accounting for obstructing data.
Therefore, it would have been obvious to combine the method of Frank et al (as modified by Prokoski) with the step of Gernoth et al to obtain the invention as specified in claim 10.
Claim 27 rejected under 35 U.S.C. 103(a) as being unpatentable over Frank et al in view of Prokoski, as applied to claim 1 above, and further in view of “Intoxication Identification Using Thermal Imaging” (Koukiou).
Regarding claim 27, Frank et al (as modified by Prokoski) discloses all of the claimed elements as set forth above and incorporated herein by reference.
Frank et al (as modified by Prokoski) does not disclose expressly the intoxication assessment method comprises one or more of: - using Markov chains or Bayesian networks for modeling statistical behaviour of pixels in a forehead region of the face portion, wherein the forehead region comprises an image of a forehead of the individual; identifying local difference patterns in the face portion to assess the intoxication status; and feature fusion analysis to fuse dissimilar features of the face portion using neural networks to assess the intoxication status.
Koukiou discloses the intoxication assessment method comprises one or more of: using Markov chains or Bayesian networks for modeling statistical behaviour of pixels in a forehead region of the face portion (page 168-169, part 11), wherein the forehead region comprises an image of a forehead of the individual; identifying local difference patterns in the face portion to assess the intoxication status (page 153-155, “Face temperature differences after alcohol consumption”, fig. 3);and feature fusion analysis to fuse dissimilar features of the face portion using neural networks to assess the intoxication status (page 159-163, part 8).
Frank et al (as modified by Prokoski) & Koukiou are combinable because they are from the same field of endeavor, i.e. intoxication identification using thermal images.
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to use a calculated method to determine intoxication status.
The suggestion/motivation for doing so would have been to provide a more robust method by taking into account tested data.
Therefore, it would have been obvious to combine the method of Frank et al (as modified by Prokoski) with the method of finding intoxication status of Koukiou to obtain the invention as specified in claim 27.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHLEEN YUAN DULANEY whose telephone number is (571)272-2902. The examiner can normally be reached M1:9am-5pm, th1:9am-1pm, fri1 9am-3pm, m2: 9am-5pm, t2:9-5 th2:9am-5pm, f2: 9am-5pm.
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/KATHLEEN Y DULANEY/Primary Examiner, Art Unit 2666 4/15/2026
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